Seems very odd indeed to me to think this is about "unconscionability". The case isn't properly about the parties' rights and obligations inter se. The "arbitration agreement" (sic) doesn't purport to alter those. It should be about whether an agreement between the parties can oust the court system's ability to hear a claim. It is an attempt by agreement to exclude civil recourse for wrongdoing. That doesn't require the court to embark on the sexy and exciting question of inequality of bargaining power. It is a public policy matter. It isn't about the proper limits on the powers of the parties to bind themselves by agreement (ie "freedom of contract"). It shouldn't matter if the driver were a bit richer, the form a bit more individually negotiated, or its terms a bit less egregious.

Brown J looks right to me. The approach of the majority both a mistake, and the source of future litigation.

From: Stephen Pitel <spitel@uwo.ca>
Sent: 26 June 2020 15:01
To: Obligations <obligations@uwo.ca>
Subject: ODG: Supreme Court of Canada on Unconscionability in Contract